Citation Nr: 1007433
Decision Date: 03/01/10 Archive Date: 03/11/10
DOCKET NO. 07-31 694 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in St.
Petersburg, Florida
THE ISSUES
1. Entitlement to an increased rating in excess of 10
percent for traumatic arthritis of the cervical spine on
congenital fusion, prior to December 8, 2008.
2. Entitlement to an increased rating in excess of 20
percent for traumatic arthritis of the cervical spine on
congenital fusion (cervical spine disability), from December
8, 2008.
3. Entitlement to service connection for lumbar spine
condition, to include degenerative disc disease of the lumbar
spine, to include as secondary to service-connected cervical
spine disability.
4. Entitlement to service connection for a right hip
condition, to include arthritis of the right hip with pain,
numbness and tingling, including as secondary to service-
connected cervical spine disability and/or as secondary to
the claimed lumbar spine condition.
5. Entitlement to service connection for a left hip
condition, to include arthritis of the left hip with pain,
numbness and tingling, including as secondary to service-
connected cervical spine disability and/or as secondary to
the claimed lumbar spine condition.
6. Entitlement to service connection for a neurologic
deficit manifested by numbness and radiculopathy of the right
lower extremity, to include as secondary to service-connected
cervical spine disability and/or as secondary to the claimed
lumbar spine condition.
REPRESENTATION
Veteran represented by: Disabled American Veterans
WITNESSES AT HEARING ON APPEAL
The Veteran and his wife
ATTORNEY FOR THE BOARD
Katie Molter, Associate Counsel
INTRODUCTION
The Veteran served on active duty from August 1947 to June
1977.
This appeal before the Board of Veterans' Appeals (Board)
arises from rating decisions by local Regional Offices (RO)
dated since August 2006. In a rating decision of August
2006, the RO denied the claim of entitlement to an increased
rating for traumatic arthritis of the cervical spine on
congenital fusion, currently evaluated as 10 percent
disabling. In rating decisions of January 2008 and 2009, the
RO denied the claim of entitlement to service connection (on
a direct and secondary basis) for a neurologic deficit
manifested by numbness and radiculopathy of the right lower
extremity; and in the January 2009 rating decision, the RO
also denied entitlement to service connection (on a direct
and secondary basis) for: a lumbar spine condition, to
include degenerative disc disease of the lumbar spine; a
right hip condition, to include arthritis with pain, numbness
and tingling; and a left hip condition, to include arthritis
with pain, numbness and tingling. The Veteran perfected
timely appeals of each rating decision.
During the pendency of the appeal, in an April 2009 rating
decision, the RO granted an increased rating of 20 percent
rating for the Veteran's traumatic arthritis of the cervical
spine on congenital fusion, effective from December 8, 2008.
As the 20 percent rating does not represent the highest
possible benefit, this matter remains in appellate status.
AB v. Brown, 6 Vet. App. 35, 38 (1993).
The Veteran testified at a Board hearing before the
undersigned Veterans Law Judge hearing in November 2009. A
transcript of that hearing has been reviewed and associated
with the claims file.
The issues of entitlement to service connection (on a direct
and secondary basis) for: a lumbar spine condition, to
include degenerative disc disease of the lumbar spine; a
right hip condition, to include arthritis of the right hip
with pain, numbness and tingling; a left hip condition, to
include arthritis of the left hip with pain, numbness and
tingling; and a neurologic deficit manifested by numbness and
radiculopathy of the right lower extremity, are being
REMANDED to the RO via the Appeals Management Center (AMC),
in Washington, DC.
Please note this appeal has been advanced on the Board's
docket pursuant to 38 C.F.R. § 20.900(c) (2009). 38 U.S.C.A.
§ 7107(a)(2) (West 2002).
FINDINGS OF FACT
1. Prior to December 8, 2008, the Veteran's traumatic
arthritis of the cervical spine on congenital fusion has been
manifested by a combined range of motion of, at worst, 190
degrees and limited forward flexion of, at worst, 45 degrees
with pain, muscle spasticity, tenderness, and spasm, which
were not severe enough to be responsible for abnormal gait or
abnormal spine contour.
2. Since December 8, 2008, the Veteran's traumatic arthritis
of the cervical spine on congenital fusion has been
manifested by limitation of forward flexion of no less than
30 degrees with pain.
CONCLUSIONS OF LAW
1. The criteria for an increased rating in excess of 10
percent for traumatic arthritis of the cervical spine on
congenital fusion prior to December 8, 2008, have not been
met. 38 U.S.C.A. § 1155, (West 2002); 38 C.F.R. §§ 3.102,
3.159, 3.321, 4.1, 4.3, 4.6, 4.7, 4.40, 4.45, 4.59, 4.71,
4.71a; General Rating Formula for renumbered Diagnostic Codes
5237-5243 (2009).
2. The criteria for an increased rating in excess of 20
percent for traumatic arthritis of the cervical spine on
congenital fusion since December 8, 2008, have not been met.
38 U.S.C.A. § 1155, (West 2002); 38 C.F.R. §§ 3.102, 3.159,
3.321, 4.1, 4.3, 4.6, 4.7, 4.40, 4.45, 4.59, 4.71, 4.71a;
General Rating Formula for renumbered Diagnostic Codes 5237-
5243 (2009).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. Duties to Notify and Assist
VA's duties to notify and assist claimants in substantiating
a claim for VA benefits are found in part at 38 U.S.C.A. §
5103 (West 2002 & Supp. 2009) and 38 C.F.R. §3.159 (2009).
VA's notice requirements apply to all five elements of a
service connection claim: veteran status, existence of a
disability, a connection between the veteran's service and
the disability, degree of disability, and effective date of
the disability. Dingess v. Nicholson, 19 Vet. App. 473
(2006). In rating cases, a claimant must be provided with
information pertaining to assignment of disability ratings
(to include the rating criteria for all higher ratings for a
disability), as well as information regarding the effective
date that may be assigned. Id.
In Vazquez-Flores v. Peake (Vazquez-Flores I), 22 Vet. App.
37 (2008), the United States Court of Appeals for Veterans
Claims (Court) held that, at a minimum, adequate VCAA notice
requires that VA notify the claimant that, to substantiate an
increased rating claim: (1) the claimant must provide, or ask
VA to obtain, medical or lay evidence demonstrating a
worsening or increase in severity of the disability and the
effect that worsening has on the claimant's employment and
daily life; (2) if the diagnostic code under which the
claimant is rated contains criteria necessary for entitlement
to a higher disability rating that would not be satisfied by
the claimant demonstrating a noticeable worsening or increase
in severity of the disability and the effect of that
worsening has on the claimant's employment and daily life
(such as a specific measurement or test result), the
Secretary must provide at least general notice of that
requirement to the claimant; (3) the claimant must be
notified that, should an increase in disability be found, a
disability rating will be determined by applying relevant
diagnostic codes; and (4) the notice must also provide
examples of the types of medical and lay evidence that the
claimant may submit (or ask VA to obtain) that are relevant
to establishing entitlement to increased compensation.
The United States Court of Appeals for the Federal Circuit
(Federal Circuit) vacated Vazquez-Flores I in Vazquez-Flores
v. Shinseki (Vazquez-Flores II), 580 F.3d 1270 (Fed. Cir.
2009). In Vazquez-Flores II, the Federal Circuit held that
the notice described in 38 U.S.C. § 5103(a) need not be
veteran specific and does not require the VA to notify a
veteran of the alternative diagnostic codes or of potential
daily life evidence.
Compliant notice must be provided to a claimant before the
initial unfavorable decision on a claim for VA benefits by
the agency of original jurisdiction (in this case, the RO and
the AMC). See Pelegrini v. Principi, 18 Vet. App. 112
(2004); see also Disabled American Veterans v. Secretary of
Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). However,
the notice requirements may, nonetheless, be satisfied if any
errors in the timing or content of such notice are not
prejudicial to the claimant. Id.
Collectively, in letters dated in May 2006, November 2007,
May 2008 and September 2008, VA provided the Veteran the
notice required by the VCAA in increased rating cases to
include that required by Dingess and Vazquez-Flores I & II.
After the Veteran was afforded opportunity to respond to the
notices identified above, the supplemental statement of the
case (SSOC) reflects readjudication of the claim on appeal.
In addition, although the Veteran was not provided notice
until February 2009 regarding assignment of effective dates
(in the event that the claim was granted), the Board's
decision herein denies the claim for an increased rating. As
no effective date is being, or is to be assigned, there is
therefore no possibility of prejudice to the Veteran under
the requirements of Dingess. Hence, while some of this
notice was provided after the rating action on appeal, the
Veteran is not shown to be prejudiced by the timing of VCAA-
compliant notice. See Mayfield v. Nicholson, 20 Vet. App.
537, 543 (2006); see also Prickett v. Nicholson, 20 Vet. App.
370, 376 (2006) (the issuance of a fully compliant VCAA
notification followed by readjudication of the claim, such as
in a statement of the case (SOC) or SSOC, is sufficient to
cure a timing defect).
VA has fulfilled its duty to assist in obtaining identified
and available evidence needed to substantiate the claims
decided herein. The Veteran's service treatment records,
post-service VA treatment records, and identified private
treatment records have been obtained. Additionally, he has
been afforded several VA examinations. The Veteran has been
accorded ample opportunity to present evidence and argument
in support of his claims and appeal.
There is no additional notice that should be provided, nor is
there any indication that there is additional existing
evidence to obtain or development required to create any
additional evidence to be considered in connection with the
claims herein decided. Consequently, any error in the
sequence of events or content of the notice is not shown to
prejudice the Veteran or to have any effect on the matters
decided on appeal. Any such error is deemed harmless and
does not preclude appellate consideration of the matters
herein decided, at this juncture. See Shinseki v. Sanders,
129 S. Ct. 1696 (2009) (holding that a party alleging
defective notice has the burden of showing how the defective
notice was harmful).
II. Analysis
Disability ratings are assigned in accordance with VA's
Schedule for Rating Disabilities and are intended to
represent the average impairment of earning capacity
resulting from disability. See 38 U.S.C.A. § 1155; 38
C.F.R., Part 4 (2009). When a question arises as to which of
two ratings shall be applied under a particular diagnostic
code, the higher evaluation will be assigned if the
disability picture more nearly approximates the criteria for
the higher rating; otherwise, the lower rating will be
assigned. See 38 C.F.R. § 4.7.
In order to evaluate the level of disability and any changes
in condition, it is necessary to consider the complete
medical history of the Veteran's condition. Schafrath v.
Derwinski, 1 Vet. App. 589, 594 (1991). However, where an
increase in the level of a service-connected disability is at
issue, the primary concern is the present level of
disability. Francisco v. Brown, 7 Vet. App. 55 (1994).
Nevertheless, the Board acknowledges that a claimant may
experience multiple distinct degrees of disability that might
result in different levels of compensation from the time the
increased rating claim was filed until a final decision is
made. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The
analysis in the following decision is therefore undertaken
with consideration of the different "staged" ratings assigned
for the different time periods.
In April 2006, the Veteran filed a claim for an increased
rating for traumatic arthritis of the cervical spine on
congenital fusion. Effective September 26, 2003, the
evaluation of diseases of the spine are evaluated using the
General Rating Formula for Diseases and Injuries of the Spine
under Diagnostic Codes 5235-5243. 38 C.F.R. § 4.71a. This
formula provides that, with or without symptoms such as pain
(whether or not it radiates), stiffness, or aching, in the
area of the spine affected by the residuals of injury or
disease:
10 percent evaluation is warranted where there is forward
flexion of the thoracolumbar spine greater that 60 degrees
but not greater that 85 degrees; or, forward flexion of the
cervical spine greater than 30 degrees but not greater that
40 degrees; or, combined range of motion of the thoracolumbar
spine greater than 120
degrees but not greater than 235 degrees; or, combined range
of motion of the cervical spine greater than 170 degrees but
not greater than 335 degrees; or, muscle spasm, guarding, or
localized tenderness not resulting in abnormal gait or
abnormal spinal contour; or, vertebral body fracture with
loss of 50 percent or more of the height,
20 percent evaluation is warranted where there is forward
flexion of the thoracolumbar spine greater that 30 degrees
but not greater that 60 degrees; or, forward flexion of the
cervical spine greater than 15 degrees but not greater that
30 degrees; or, the combined range of motion of the
thoracolumbar spine not greater than 120 degrees; or, the
combined range of motion of the cervical spine not greater
than 170 degrees; or, muscle spasm or guarding severe enough
to result in an abnormal gait or abnormal spinal contour such
as scoliosis, reversed lordosis, or abnormal kyphosis,
30 percent evaluation is warranted where there is forward
flexion of the cervical spine 15 degrees or less; or,
favorable ankylosis of the entire cervical spine,
40 percent evaluation is warranted where there is unfavorable
ankylosis of the entire cervical spine; or, forward flexion
of the thoracolumbar spine 30 degrees or less; or favorable
ankylosis of the entire thoracolumbar spine, a 50 percent
evaluation is warranted where there is unfavorable ankylosis
of the entire thoracolumbar spine, and
100 percent evaluation is warranted where there is
unfavorable ankylosis of the entire spine.
38 C.F.R. § 4.71a, The Spine, General Rating Formula for
Diseases and Injuries of the Spine, Note (2) provides that,
for VA compensation purposes, normal forward flexion of the
cervical spine is zero to 45 degrees; extension is zero to 45
degrees; left and right lateral flexion are zero to 45
degrees; and left and right lateral rotation are zero to 80
degrees. The combined range of motion refers to the sum of
the range of forward flexion, extension, left and right
lateral flexion, and left and right rotation. The normal
combined range of motion of the cervical spine is 340
degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5235-5243, Plate
V (2009).
For VA compensation purposes, unfavorable ankylosis is a
condition in which the entire cervical spine, the entire
thoracolumbar spine, or the entire spine is fixed in flexion
or extension, and the ankylosis results in one or more of the
following: difficulty walking because of a limited line of
vision; restricted opening of the mouth and chewing;
breathing limited to diaphragmatic respiration;
gastrointestinal symptoms due to pressure of the costal
margin on the abdomen; dyspnea or dysphagia; atlantoaxial or
cervical subluxation or dislocation; or neurologic symptoms
due to nerve root stretching. Fixation of a spinal segment
in neutral position (zero degrees) always represents
favorable ankylosis. 38 C.F.R. § 4.71a, The Spine, General
Rating Formula for Diseases and Injuries of the Spine, Note
(5) (2009).
When evaluating musculoskeletal disabilities, VA may, in
addition to applying the schedular criteria, consider
granting a higher rating in cases in which a claimant
experiences additional functional loss due to pain, weakness,
excess fatigability, or incoordination, to include with
repeated use during flare-ups, and those factors are not
contemplated in the relevant rating criteria. See 38 C.F.R.
§§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202, 204-7
(1995). The provisions of 38 C.F.R. §§ 4.40 and 4.45 are to
be considered in conjunction with the diagnostic codes
predicated on limitation of motion (see Johnson v. Brown, 9
Vet. App. 7 (1996)).
VA records dated February 2004 to June 2006 contain a
February 2006 entry indicating that the Veteran's major neck
problem at that time was pain when he tries to look behind
him and limitation of rotation; otherwise, there was no pain
in the neck, and he had no radicular symptoms. When the
Veteran was examined by VA in June 2006, the examiner found
that inspection of the cervical spine revealed a muscle
spasticity affecting the paravertebral muscles at the lower
cervical spine. There was pain upon compression to
interscapular space of both sides but especially to the left
side with the pain radiating to the trapezius muscle in the
anatomic location of the dorsoscapular nerve. The range of
motion of the cervical spine was as follows: flexion to 45
degrees with pain, extension to 45 degrees with pain, left
and right rotation to 30 degrees with pain, right and left
bending to 20 degrees with pain. The repetitive action of
flexion/extension of the cervical spine against gravity was
met with increased pain, fatigue, weakness, and lack of
endurance but no decrease in the limited range of motion.
The deep tendon reflexes of both upper extremities were
considered one plus, equal and bilateral. There was
decreased sensation and C5, C6, and C7 dermatomal
distribution at the left upper extremity. Motor strength,
however, was considered 5/5 in both upper extremities. No
muscle atrophy was noted. The Veteran was diagnosed with
cervical spondylosis with compressive radiculopathy, C5-C6,
C6-C7.
Examination of the cervical spine at a December 2007 VA
examination showed range of motion of the cervical spine to
be zero to 45 degrees flexion, with pain beginning at 45
degrees, extension from zero to 30 degrees, with pain
beginning at 15 degrees, left and right lateral flexion from
zero to 15 degrees with pain beginning at 10 degrees, left
and right lateral rotation from zero to 45 degrees with pain
beginning at 35 degrees. The Veteran denied any
incapacitating episodes or prescribed bed rest in the past 12
months. The examiner found objective evidence of spasm, pain
with motion, and tenderness on the left and right cervical
spine. However, the examiner noted that the muscle spasm,
tenderness and guarding was not severe enough to be
responsible for abnormal gait or abnormal spine contour; and
that the Veteran's gait and posture were normal. No
neurological abnormality or objective evidence of
radiculapathy of the upper extremities was found on
examination.
Examination of the cervcical spine at a December 2008 VA
examination showed range of motion of the cervical spine to
be zero to 30 degrees flexion, zero to 20 degrees extension,
zero to 60 degrees left lateral rotation, zero to 40 degrees
right lateral rotation, and zero to 20 degrees left and right
lateral bending. The active and passive ranges of motion
were the same, and there was no change with repetition.
There was no significant pain on motion; and there was no
crepitus, instability palpation, spasm or weakness. The
Veteran denied flare-ups, exacerbations, or physician
prescribed bed rest in the past twelve months.
Prior to December 8, 2008, the Veteran has not shown, at any
time within the year prior to or since the filing of his
claim for increase in April 2006, to have favorable or
unfavorable ankylosis of the cervical spine; or forward
flexion of the cervical spine less than 45 degrees or
combined range of motion of the cervical spine less than 170,
to warrant either a 20, 30, 40, 50, or 100 percent rating.
Since December 8, 2008, the Veteran has not shown, at any
time, to have favorable or unfavorable ankylosis of the
cervical spine; or forward flexion of the cervical spine less
than 30 degrees or combined range of motion of the cervical
spine less than 170, to warrant either a 30, 40, 50, or 100
percent rating.
The evidence of record does not show that the Veteran
experienced additional functional loss due to pain, weakness,
excess fatigability, or incoordination, to include with
repeated use during flare-ups, thus the Board finds that a
higher rating, in addition to applying the schedular
criteria, is not warranted. See 38 C.F.R. §§ 4.40, 4.45;
DeLuca, 8 Vet. App. at 204-7.
Any associated objective neurologic abnormalities, including,
but not limited to, bowel or bladder impairment, separately,
are to be evaluated under an appropriate diagnostic code.
38 C.F.R. § 4.71a, The General Rating Formula for Spine, Note
(1). In this regard, on VA examination in June 2006, the
Veteran was found to have had pain upon compression
especially to the left side of interscapular space with the
pain radiating to the trapezius muscle in the anatomic
location of the dorsoscapular nerve, as well as decreased
sensation and C5, C6, and C7 dermatomal distribution at the
left upper extremity. However, on that same examination, the
Veteran demonstrated intact motor strength at 5/5 in both
upper extremities; his deep tendon reflexes of both upper
extremities were one plus, equal and bilateral; and no muscle
atrophy was detected. In fact, the record evidence shows
that the Veteran had no radicular symptoms on VA orthopedic
consult in February 2006, or on subsequent VA examination in
December 2007; in which the VA examiner specifically noted
that the Veteran had no neurological abnormality or objective
evidence of radiculapathy of the upper extremities. For
these reasons, the Board concludes that a rating based on
neurological symptoms is not warranted.
Consequently, the Board finds that the preponderance of the
evidence is against a rating in excess of 10 percent for
service-connected traumatic arthritis of the cervical spine
prior to December 8, 2008, and against a rating in excess of
20 percent since December 8, 2008, for the Veteran's cervical
spine disability. For that reason, the benefit-of-the-doubt
doctrine is not for application. See 38 U.S.C.A. § 5107(b);
38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-
56 (1990). In light of the above, the Board finds that any
additional staged ratings (other than already staged rating
as delineated) pursuant to Hart are not warranted. Hart, 21
Vet. App. 505.
ORDER
Entitlement to an increased rating in excess of 10 percent
for service-connected traumatic arthritis of the cervical
spine on congenital fusion prior to December 8, 2008, is
denied.
Entitlement to a rating in excess of 20 percent for service-
connected traumatic arthritis of the cervical spine on
congenital fusion since December 8, 2008, is denied.
REMAND
With respect to the Veteran's remaining claims for service
connection, the Board has determined that further development
is warranted.
In statements and testimony presented throughout the duration
of the appeal, the Veteran has alleged that he injured his
back and suffered low back pain when he was shot down in
December 1951 in North Korea in Woncan Bay. The Veteran's
military occupation of airplane pilot and awards reflect
participation in combat; therefore, he is entitled to the
presumptions of 38 U.S.C.A. § 1154(b). In particular, the
Veteran's DD 214 shows that his awards and decorations
include two Gold Star Medals with "V" device indicating
combat service. The Board notes that the attachment of the
"V" device indicates service with valor and reflective of
combat participation. See generally Army Regulation 672-5-1,
40. As the evidence of record supports a finding that the
Veteran was engaged in combat during his active duty service,
the provisions of 38 U.S.C.A. § 1154(b) and 38 C.F.R. §
3.304(d) are for application in this case.
The Board recognizes that, in the case of any veteran who
engaged in combat with the enemy in active service,
satisfactory lay or other evidence that an injury or disease
was incurred or aggravated in combat will be accepted as
sufficient proof of service incurrence if the evidence is
consistent with the circumstances, conditions or hardships of
such service even though there is no official record of such
incurrence or aggravation, and, to that end, every reasonable
doubt shall be resolved in favor of the Veteran. 38 U.S.C.A.
§ 1154(b); 38 C.F.R. § 3.304(d). The Veteran has provided
lay evidence that he suffered low back pain from an injury he
sustained to his back in combat when he was shot down in
December 1951. This lay evidence is consistent with the
circumstances of the Veteran's military occupation specialty
and where he was stationed. In addition, the Veteran
submitted his Aviators Flight Log Book which shows that in
December 1951 he was struck and shot down in Wonson Harbor.
This entry was certified by the Veteran and then approved by
a superior. With no evidence to the contrary the Board finds
that after resolving all doubt in favor of the Veteran, that
the Veteran has presented sufficient proof that he sustained
an injury to his back and suffered low back pain while in
combat.
Given that the Board accepts the Veteran's satisfactory lay
and other evidence as sufficient proof of the in-service
occurrence of low back pain at the time he sustained an
injury to his back while in combat, in accordance with
38 U.S.C.A. § 1154(b), there remains the question of the
whether the Veteran's current lumbar spine condition is
related to the in-service back injury and low back pain he
suffered at that time. Thus, upon remand the Veteran should
be afforded a VA examination to obtain a medical opinion as
to whether there is a nexus between the current condition and
the in-service combat injury.
With respect to the Veteran's claims for his left hip
condition, the Board notes that the Veteran was afforded a VA
examination in December 2008. The examiner evaluated the
Veteran's right hip and made a diagnosis and rendered and
etiology opinion with respect to the right hip, however, the
examiner did not evaluate the Veteran's left hip. The
January 2009 rating decision which denied this claim cited to
the December 2008 VA examination in support for its denial,
however, no examination was conducted of the left hip and no
opinion was rendered. Therefore, upon remand, the Veteran
should be afforded a VA examination in order for his left hip
to be evaluated. In addition, the December 2008 VA
examination report stated that x-rays were taken of the hip
in June 2008 which showed moderate joint space narrowing. A
December 2008 VA treatment record stated that bilateral hip
x-rays were taken and showed right greater than left
osteoarthritis. The claims file does not contain a copy of
the June 2008 x-rays or any other x-rays of the hips and as
such a copy should be obtained and associated with the claims
file upon remand.
Accordingly, the case is REMANDED for the following action:
1. Obtain and associate with the claims
file a copy of the June 2008 x-rays of
the Veteran's hips. All
records/responses received should be
associated with the claims file.
2. After completing the above
development, schedule the Veteran for a
VA examination by an appropriate
specialist to determine the current
nature and etiology of any current left
hip and lumbar spine condition as well as
determinations as to whether the
Veteran's cervical spine and lumbar spine
conditions have caused secondary
conditions.
The RO/AMC must inform the VA examiner of
the Veteran's combat-related injury,
i.e., the Veteran having sustained a back
injury and pain in the low back area when
the Veteran was shot down in his plane
while in combat. The claims file must be
made available to and reviewed by the
examiner in connection with the
examination. All tests deemed necessary
should be conducted.
The examiner should respond directly to
the following questions:
(1) Is it as likely as not (a 50 percent
or greater probability) that the
Veteran's current lumbar spine condition,
to include degenerative disc disease of
the lumbar spine, was caused by the
injury to the back and pain in the low
back area that the Veteran sustained when
he was shot down while in combat?
(2) Is it as least as likely as not (a 50
percent or greater probability) that the
Veteran's lumbar spine condition, to
include degenerative disc disease of the
lumbar spine, is the cause of any
currently diagnosed condition of right
lower extremity, to include a
neurological deficit manifested by
numbness and radiculopathy of the right
lower extremity?
(3) Is it as least as likely as not (a 50
percent or greater probability) that the
Veteran's lumbar spine condition, to
include degenerative disc disease of the
lumbar spine, is the cause of any
currently diagnosed right hip condition,
to include arthritis of the right hip
with pain, numbness and tingling?
(4) Is it as least as likely as not (a 50
percent or greater probability) that the
Veteran's lumbar spine condition, to
include degenerative disc disease of the
lumbar spine, is the cause of any
currently diagnosed left hip condition,
to include arthritis of the left hip
arthritis with pain, numbness and
tingling?
(5) Is it as least as likely as not (a 50
percent or greater probability) that the
Veteran's lumbar spine condition, to
include degenerative disc disease of the
lumbar spine, caused a worsening of any
currently diagnosed right lower extremity
condition, to include a neurological
deficit manifested by numbness and
radiculopathy of the right lower
extremity?
(6) Is it as least as likely as not (a 50
percent or greater probability) that the
Veteran's lumbar spine condition, to
include degenerative disc disease of the
lumbar spine, caused a worsening of any
currently diagnosed right hip condition,
to include arthritis of the right hip
with pain, numbness and tingling?
(7) Is it as least as likely as not (a 50
percent or greater probability) that the
Veteran's lumbar spine condition, to
include degenerative disc disease of the
lumbar spine, caused a worsening of any
currently diagnosed left hip condition,
to include arthritis of the left hip with
pain, numbness and tingling?
(8) Is it as least as likely as not (a 50
percent or greater probability) that the
Veteran's cervical spine condition is the
cause of any currently diagnosed lumbar
spine condition, to include degenerative
disc disease of the lumbar spine?
(9) Is it as least as likely as not (a 50
percent or greater probability) that the
Veteran's cervical spine condition is the
cause of any currently diagnosed right
lower extremity condition, to include a
neurological deficit manifested by
numbness and radiculopathy of the right
lower extremity?
(10) Is it as least as likely as not (a
50 percent or greater probability) that
the Veteran's cervical spine condition is
the cause of any currently diagnosed
right hip condition, to include right hip
arthritis with pain, numbness and
tingling?
(11) Is it as least as likely as not (a
50 percent or greater probability) that
the Veteran's cervical spine condition is
the cause of any currently diagnosed left
hip condition, to include left hip
arthritis with pain, numbness and
tingling?
(12) Is it as least as likely as not (a
50 percent or greater probability) that
the Veteran's cervical spine condition
caused a worsening of any currently
diagnosed lumbar spine condition, to
include degenerative disc disease of the
lumbar spine?
(13) Is it as least as likely as not (a
50 percent or greater probability) that
the Veteran's cervical spine condition
caused a worsening of any currently
diagnosed right lower extremity
condition, to include a neurological
deficit manifested by numbness and
radiculopathy of the right lower
extremity?
(14) Is it as least as likely as not (a
50 percent or greater probability) that
the Veteran's cervical spine condition
caused a worsening of any currently
diagnosed right hip condition, to include
arthritis of the right hip with pain,
numbness and tingling?
(15) Is it as least as likely as not (a
50 percent or greater probability) that
the Veteran's cervical spine condition
caused a worsening of any currently
diagnosed left hip condition, to include
arthritis of the left hip with pain,
numbness and tingling?
In addition, the examiner should examine
the Veteran's left hip and provide a
diagnosis of any current left hip
disability found. The examiner should
express an opinion as to whether it is
more likely, less likely, or at least as
likely as not that the Veteran's current
left hip condition is related to his
active military service. A complete
rationale for any opinions should be
provided.
3. After completing the requested
action, and any additional notification
and/or development deemed warranted,
readjudicate the claims on appeal, in
light of all pertinent evidence and legal
authority, on both a direct and secondary
basis. If any determination remains
adverse, the Veteran and his
representative should be furnished a
supplemental statement of the case, to
include the provisions of 38 C.F.R.
§ 3.156(a), and afforded an appropriate
period of time to respond.
The Veteran has the right to submit additional evidence and
argument on the matter the Board has remanded. Kutscherousky
v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board or by
the United States Court of Appeals for
Veterans Claims (Court) for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009).
____________________________________________
DEBORAH W. SINGLETON
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs